I dissent. The controversy revolves around the one question as to whether or not death was due to accident or was suicide. The evidence which shall be presently analyzed all clearly points to suicide.
In such a legal controversy the plaintiff from the start has the benefit of the presumption that where there is death by violent means and there is no direct evidence of the means of death, such death will be presumed to have been by accident rather than suicide. This is not a presumption grounded upon an express statute of this state, but it is accepted as the general rule in this as well as in most other jurisdictions. (Nichols v. *Page 170 New York Life Ins. Co., 88 Mont. 132, 292 P. 253, and other cases.)
The presumption mentioned being the only support for the verdict and judgment, it becomes important to analyze presumptions and determine their particular functions and their proper weight in the rules of evidence. All our statutes on presumptions, sections 10600 to 10606, Revised Codes, were adopted in 1895 from the California Code of Civil Procedure, sections 1957 to 1963, inclusive. The supreme court of California, after seventy years, says: "There seems to be some confusion in the decisions of this state with respect to the extent to which * * * presumptions of law are to be regarded as evidence of facts." (Mar Shee v. Maryland Assur. Corp.,190 Cal. 1, 210 P. 269, 272.)
It appears to me that the reference to presumptions in our section 10600 has been emphasized and the effect of presumptions broadened at the expense of the definition of presumptions as set down in section 10602. The two sections respectively provide: (10600) "Indirect evidence is of two kinds: 1. Inferences; and, 2. Presumptions." (10602) "A presumption is a deduction which the law expressly directs to be made from particular facts." Presumptions are not generally accepted as evidence. Many authorities hold that presumptions derive all of their probative force from the statutes, regardless of logic or reasoning and that, in effect, is the only logical construction to be placed on section 10602.
IX Wigmore on Evidence, 3rd Ed., section 2491, subdivision 3, says: "It is therefore a fallacy to attribute * * * an artificial probative force to a presumption." And again the same eminent authority in section 2498a of the same volume says: "No one who has recorded his views upon this subject has expressed contentment with the present condition of the law."
That presumptions are not evidence is a rule generally adhered to in all federal courts, being departed from only where federal decisions are grounded on state statutes. *Page 171
In New York Life Ins. Co. v. Gamer, 303 U.S. 161, 171,58 Sup. Ct. 500, 503, 82 L. Ed. 480, 114 A.L.R. 1218, it was said in reference to the presumption in favor of accidental rather than suicidal death in that case: "The presumption is not evidence and may not be given weight as evidence." Eight federal court decisions were cited to sustain that statement. A very decided preponderance of authority is in accord with that holding. (SeeJefferson Standard Life Ins. Co. v. Clemmer, 4 Cir.,79 Fed. 2d 724, 103 A.L.R. 171, and annotation at page 186.) Our own statutory section 10600, R.C., classifies presumption as indirect evidence, but section 10602 defines a presumption as a deduction which the law directs to be made from particular facts. Necessarily the "particular facts" mentioned in the statute must be established before the presumption can arise. Our code sections on presumptions are in pari materia and must be construed together.
Again quoting from IX Wigmore on Evidence, page 336, it is said: "Presumption means that where one or more specific facts are proved, as evidence tending to prove a fact-in-issue, and no evidence negativing the fact-in-issue has been introduced, the fact-in-issue is by rule of law established as proved, without further evidence in the affirmative."
Webster's New International Dictionary says a "presumption" is "an inference as to the existence of one fact not certainly known, from the known or proved existence of some other fact, founded on a previous experience or general knowledge of their connection or founded on a rule of policy of the law." 2 Bouv. Law Dict., Rayle's Third Revision, p. 2678, defines "presumptions of fact" as "Inferences as to the existence of some fact drawn from the existence of some other fact." New Century Dictionary defines "presumptions" as "An inference as to the existence of one fact from the known existence of other facts; an inference in accordance with the common experience of mankind and the established principles of logic, or with the prescribed policy of the law."
22 C.J., section 25, page 82, gives this definition: "A presumption *Page 172 is an inference of the existence or nonexistence of some fact which courts or juries are required or permitted to draw from the proof of other facts."
9 Encylclopedia of Evidence, page 877, says: "Presumptions are ordinarily treated as a part of the law of evidence; logically considered, however, they do not belong to this subject, though often closely connected with it, but rather are rules of legal reasoning, similar in this respect to judicial notice. And many of the so-called presumptions have no connection whatever with evidence, being mere rules of substantive law."
20 Am. Jur., section 158, page 161 et seq., says: "A presumption may be defined as a rule of law that attaches definite probative value to specific facts or draws a particular inference as to the existence of one fact, not actually known, arising from its usual connection with other particular facts which are known or proved. It is the conclusion of law which the court draws of the existence of one fact from others already proved. * * * Presumptions must always conform to the commonly accepted experiences of mankind and the inference which reasonable men would draw from such experiences. * * * A matter that is presumed to exist need not be proved as long as the presumption continues in force. In all cases, however, apresumption must be based upon an ascertained fact." See also 10 R.C.L., p. 868, and the numerous definitions on presumptions in 33 Words and Phrases, permanent edition, p. 478, all of which are generally in accord with the foregoing authorities.
It is clearly obvious from these numerous authorities, particularly from our own statutory definition set out in section 10602, that a presumption is not evidence in itself but is merely an inference or a deduction which by arbitrary rule of law is given the effect of evidence. A presumption, standing alone, has no probative value; it rests upon and derives all its force from facts admitted or proven in a particular case, and when the facts are established the law steps in and says: The experience of mankind has demonstrated that when certain facts are shown to exist certain other facts may be reasonably inferred as a logical *Page 173 sequence, and therefore when the death of a human being occurs by violent means and there is no direct evidence as to the cause of death, the law will presume that such death was due to accident rather than suicide, and no evidence need be introduced to sustain that presumption; it is sufficient in itself until controverted by evidence to the contrary.
Why does the law presume death was by accident rather than suicide in such a case as that at bar? The answer is found in a number of cases. (See 103 A.L.R. 185.) It is said "Mankind instinctively love life and generally shun death," (ModernWoodmen v. Craiger, 175 Ind. 30, 92 N.E. 113, 114, 93 N.E. 209); and in Brunswick v. Standard Acc. Ins. Co.,278 Mo. 154, 213 S.W. 45, 50, 7 A.L.R. 1213, it was said: "The presumption against suicide is a rule of law * * * based on the well-nigh universal human characteristic of love of life and fear of death."
In the case at bar a number of witnesses testified as to the insured's good character, his happy and genial manner and popularity with his associates; he was neat and of good taste in dress, and possessed of those traits of character that meet with general commendation. These are the things that make life worthwhile and furnish the foundation for the presumption against suicide. It was not necessary to present such evidence in behalf of the plaintiff. The plaintiff's cause already enjoyed the benefit of such evidence by reason of the presumption.
A presumption that always applies in criminal actions is that one accused of crime shall be presumed to be innocent until proven guilty. That is a presumption that may not be overcome except by evidence of guilt beyond a reasonable doubt, but the presumption involved in this, a civil action, is, if there be any conflict, overcome by a preponderance of the evidence against it. (Subdiv 5, sec. 10672, Rev. Codes.) Presumptions in criminal and civil actions differ only in the degree of evidence sufficient to cause them to "fade away." They are both derived from rules of law.
With the foregoing rules in mind, we come now to an analysis *Page 174 of the evidence. In addition to the facts mentioned in the beginning, the evidence shows that there was an open bottle of oil and other articles on a nearby table in the room where the tragedy occurred such as are generally used in cleaning a revolver. These facts were obviously put in evidence to give rise to a presumption that the insured was cleaning the revolver and it was accidentally discharged, resulting in his death. How plausible is this theory? The revolver that was the instrument of death was admitted in evidence and is before us. It was made by one of the leading manufacturers of such firearms; it is constructed with safety devices intended to prevent discharge except by intent of the operator; it is admittedly as near "fool proof" as it appears possible to make such a gun; the trigger that releases the plunger that discharges the loaded shell in the chamber must be pressed at the same time the grip on the hand-hold of the gun is made, the two acts necessary to discharge the gun must be made simultaneously; no conceivable manner of fall of the gun when held in the hand or in dropping from the pocket, or off a table or from any other place where it might be left, would result in the discharge of a shell in the chamber; the superior metal out of which such guns are made would not break by a fall from any such height regardless of the substance it struck in its fall. The plunger that discharges the shell is incased in the steel walls surrounding it and other mechanism of the gun, and no force from the outside could reach and discharge the shell unless the surrounding steel wall were broken or removed. The steel wall of the gun was obviously intact when it was seen just after the tragedy. We are necessarily reduced to the conclusion that the insured discharged the gun intentionally. If he did not discharge it with the intention of taking his own life, it necessarily follow that he gripped the handle hold and pressed the trigger at the same time, thus bringing into co-ordination the two mechanical parts necessary to discharge the gun while the gun was pointed at his head, and he did not know it was loaded. If the gun was discharged in the manner thus indicated, why did the insured have it pointed directly at his head? *Page 175 In considering this phase of the matter, the question naturally arises: What maneuver, in cleaning such a gun, would make it necessary to have the muzzle of the gun pointing directly at one's head? The only answer that appears possible is, if self destruction were not contemplated, that the cleaner desired to look down the inside of the barrel of the gun to discover its condition. The answer to that assumption is that looking down the inside of the barrel of a gun, such as that in evidence, is utterly impossible unless the gun first be broken. Some revolvers are broken by releasing the catch with the thumb at the side and swinging the cylinder out to the left; others, such as the gun in evidence, by lifting the catch at the top just over the rear end of the cylinder, raising the breech and tilting the muzzle downward. By that maneuver the cylinder holding the cartridges is directly before the eye of the holder of the gun, and in breaking the gun the eye is automatically focused upon the mechanism that must be manipulated to break the gun, and the act of breaking would present a loaded shell in the chamber to the vision. It would not be possible for it to escape the eye unless the whole maneuver were done by touch without looking. But assuming that the insured did break the gun while the loaded shell was in the chamber and failed to notice the shell, the shell would be entirely removed from a place where the plunger could be released and come in contact with and discharge the shell.
The insured was not a novice in handling firearms. The evidence shows that he was fond of outdoor life and frequently went fishing and hunting; that, in addition to the revolver before us, he owned another, two rifles and a shot gun. He was familiar with firearms and knew them to be instruments of death. It is not reasonable to assume that one of any sense of caution would point the gun at his head, manipulate its intricate firing mechanism, and pull the trigger unless he intended to kill himself. The insured's acts are in violent conflict with the natural acts and precautions of one possessing the knowledge *Page 176 and experience the evidence shows him to have possessed, unless he intended to take his own life.
We come next to the weight or sufficiency of the presumption. On the question as to the quantum of evidence necessary to overcome a presumption it was said in the case of In re Wray'sEstate, 93 Mont. 525, 19 P.2d 1051, 1054, in which the legitimacy of a party to an action in a will contest was involved: "When the evidence preponderates against a disputable presumption, it `fades away.'"
In the case of Nichols v. New York Life Ins. Co., supra, in which the question was whether death was by suicide or accident, it was said: "We have then in this case a presumption of accident in favor of plaintiff's claim as against evidence of suicide supporting defendant's contention. * * * There is no statute making proof of death prima facie evidence that it resulted from accident. But even as to statutory presumptions the rule is that the presumption `fades away in the face of contrary facts.' * * * The presumption against suicide must give way to evidence to the contrary where it all points to suicide as the cause of death with such certainty as to preclude any other reasonable hypothesis. * * * `It may be stated at the outset that self-destruction is not to be presumed. In other words, the presumption arising from the general conduct of mankind is that a sane person will not destroy his own life. But this is a rebuttable presumption, and easily yields to physical facts clearly inconsistent with it. It is not proof, nor does it stand in the way of proof, and, when sufficient evidence is introduced to overcome this legal presumption, it disappears.'"
It was contended that the testimony of the insured's landlady, Mrs. Kurtz, as given at the inquest, was in conflict with that given at the trial. Her testimony on the two occasions was not in full accord, but I do not think the conflict seriously impaired its value. Her testimony throughout showed unusual solicitude for the welfare of the insured and referred to him as always being happy and jolly up until a short time prior to his death and one of her nicest boarders. None of the witnesses called *Page 177 by the plaintiff spoke in terms of higher praise of the insured than did Mrs. Kurtz, and her testimony is in the record unimpeached in any material particular. Mrs. Kurtz's testimony, except for the letters written by the insured to his parents shortly before the tragedy, is the only substantial evidence from which a jury or a court could derive any notion as to the insured's frame of mind, his thoughts or purposes, in the days and hours just prior to his death. He visited his father a week or two prior to his death and Mrs. Kurtz testified that on his return he was changed from a happy-go-lucky boy into one frequently in tears.
The insured, working late at night, was usually a late sleeper, and when awakened at his usual hour in the late forenoon would often fall asleep again, and to be sure he would get out on time an electric bell was installed in his room on the second floor and when the bell began ringing in his room, it would continue until it was shut off on the floor below, and his roommate was up and gone some two or three hours as a rule before he got up. On the morning of the tragedy the insured was up about 6:30 o'clock, shaved, bathed and put on one of his best suits, and was working over his bank account when his roommate was ready to go down to breakfast. The insured asked his roommate to help him straighten out his bank account, but was advised that he was late and did not have time but would help later. After the roommate had had breakfast and gone to his place of employment, the insured came down to breakfast. Mrs. Kurtz, looking through the window of the dining room from her work on the lawn, saw the insured was not eating his breakfast. She went in and spoke to him and inquired if she could get anything for him. He asked for scrambled eggs, toast and coffee, stating that he did not care for the fruit and cereal usually served. She fixed what he asked for and while he was eating he smoked nearly a package of cigarettes and drank some eight cups of coffee. The insured returned to his room. Mrs. Kurtz and Mrs. Walsh, a neighbor who had joined her on the lawn, entered the dining room and sat down to visit and have a cup of coffee. *Page 178 Mrs. Kurtz expressed concern about "Glenn." In a short time they heard a noise as if a door had been slammed. Mrs. Kurtz said: "What was that?" Mrs. Walsh suggested it was Glenn going out the front door, but Mrs. Kurtz remarked that he always came through the dining room when leaving the house and further stated that the noise came from Glenn's room. Being perturbed by the noise and unable to account for it, Mrs. Kurtz went to the insured's room and found his body on the floor in his shirt sleeves with the revolver on the floor not far from his hand. She also noticed the articles on the table used to clean revolvers. She testified she was so overcome with shock that she had to get Mrs. Walsh to telephone to the authorities.
The insured's superior at Anaconda in the management of the movie picture concern testified that the insured could have his job back when the dull season was over, but the insured's letter of April 14th to his fiancee does not show that the insured was at all confident of his employment with the movie concern being continued, and solicited her assistance in getting a position; his next letter of April 27th again expressed concern about a job. His letter of April 22nd to his father was almost entirely about money matters and concern about employment, and stated he expected to arrange to visit his father at Helena on or before May 10th, but expressed doubt about being able to do so on account of finances. His letter of April 14th to his father was entirely about desiring a job with some indefinite reference to money. Mrs. Kurtz's testimony as to the insured's advising her that when he left his job with the movie concern he would have about $20 left is repeated in substance in his letter of April 22nd to his father. The insured was obviously worried about his own future and that of his parents, to whom, it appears, he was deeply devoted. He was disappointed in not being able to continue his education at college, about not having lucrative employment, and not being able to save anything of consequence out of his modest salary; he was perturbed about his father's health and the business affairs of his parents at Roundup.
By virtue of the statutes the jury in this case are made the *Page 179 sole judges of the effect and value of evidence addressed to them (sec. 10672, Rev. Codes), but "their power of judging of the effect of evidence is not arbitrary, but to be exercised * * * in subordination to the rules of evidence" (subdiv. 1, sec. 10672). It is their sworn duty, when there is a conflict in the evidence, to determine all civil actions in accord with the preponderance of the evidence. (Subdiv. 5, sec. 10672). What does a "preponderance of the evidence" mean? In Callahan v.Fleischman Co., 262 Mass. 437, 160 N.E. 249, 250, the supreme court of that state said: "The preponderance which determines the verdict must be a preponderance of credible testimony, not a `balance of probabilities.'"
In Troeder v. Lorsch, 1 Cir., 150 Fed. 710, 713, it was said: "To create a preponderance of evidence, the evidence must be sufficient to overcome the opposing presumptions as well as the opposing evidence." In Mathes v. Aggeler Musser SeedCo., 179 Cal. 697, 178 P. 713, 714, it was said: "`Preponderance of evidence' in a civil case means only that the evidence on one side outweighs the evidence on the other." InUnited States v. McCaskill, (D.C.) 200 Fed. 332, 333, it was said: "`Preponderance of evidence' means * * * that which accords best with reason and probability."
Neither court nor jury may disregard unimpeached credible evidence. (West v. Wilson, 90 Mont. 522, 4 P.2d 469;Giebler v. Giebler, 69 Mont. 347, 222 P. 436; Haddox v.Northern P. R. Co., 43 Mont. 8, 113 P. 1119; First StateBank v. Larsen, 65 Mont. 404, 211 P. 214; Harwood v.Scott, 65 Mont. 521, 211 P. 316; Boe v. Lynch, 20 Mont. 80,49 P. 381.)
There is not a scintilla of evidence in the record to support the presumption of accidental death of the insured; it is supported only by the presumption and presumptions are merely inferences drawn from facts. (Sec. 10602, Rev. Codes.) All the facts and circumstances clearly point to suicide.
The judgment should be reversed.
Rehearing denied April 13, 1942. *Page 180